I am going to briefly cover this topic in this post as I plan to follow up with a video soon.
What is the Problem?
This issue has come up several times this month with new clients so I feel that there are still people out there that are not getting the word. The fact that you have a Will that was properly signed by your mother, father, spouse or whoever does not mean a thing as far what the Will calls for to be carried out. If you are named as the executor in that Will and the person has died, you have no authority to act for that person , their estate or to do anything with their assets. That confuses a lot of people because the Will says that they have the authority to do those things. The truth is that you can GET that authority but you do not automatically have it just becasue the person has died.
How Do You Get Authority?
You must file the Will with the Probate Court in the County where the person died or where the persons assets and real property are located. Along with this you file a request for the Court to issue you what is called “Letters Testamentary”. It is the issuing of these Letters Testamentary that grant you the authority to begin acting in your capacity as the executor or the person in charge of the deceased persons assets and affairs. If you go the persons bank to check on any accounts or to get into a safety deposit box or obtain any personal information anywhere, you will be asked for a copy of the Letters Testamentary.
What About the House?
A popular thing to do is to go down to the Tax Assessors Office and have Daddy’s property put in your name by showing a death certificate and a copy of the Will. They really should ask you for a copy of the Letters Testamentary but sometimes they don’t because they assume you are going to probate the Will and are cutting you some slack. Not the way it should be done but it still happens. After this is done, people rock along for years thinking that that have taken care of everything. Later when they go to sell the property or borrow money on it, they find out that the property is still in Daddy’s name. This is because the Tax Assessor records have nothing to do with ownership of the property. That has to be done through the Probate Court. The change of Title must be accomplished either through the Probate of the Will or other judicial means. Simply assessing the property in your name will have no effect unless you then pay the taxes for more than 10 years and file an action to quiet the Title which is much more trouble and expensive than simply probating the Will. In the past couple of months I have come across this type situation three times. In each case the individuals thought that they had title to the property.
What Can Be Done?
It is a good practice to consult with an attorney when an important event such as a death occurs. A little prevention or precaution can go a long way toward avoiding potential problems.
I would be happy to talk with you about such matters. Please feel free to email or give me a call. Thanks for reading.
